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Lopez v. Berkel


February 6, 2009


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5843-05.

Per curiam.


Submitted January 13, 2009

Before Judges Wefing and Yannotti.

Plaintiff Jose Lopez appeals from an order dated March 14, 2008, which denied plaintiff's motions to reinstate his complaint, for an extension of time for discovery, and to permit plaintiff to be deposed by video teleconference or "in person" in the Dominican Republic. For the reasons that follow, we affirm.

The following facts are relevant to our decision. On November 21, 2005, plaintiff filed a complaint in the Law Division in which he alleged, among other things, that he was seriously injured while working with a meat grinder that was "designed, manufactured, assembled, installed, repaired, modified, maintained, serviced, sold, resold, leased and/or distributed" by defendants. In January 2006, plaintiff's attorney, Raymond E. Murphy, Jr. (Murphy), withdrew from the case and Kenneth A. Berkowitz (Berkowitz) of the Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte law firm assumed responsibility for representing plaintiff.

On October 11, 2006, the court entered a case management order, which required that the depositions of fact witnesses be completed by February 28, 2007. The October 11, 2006 order required plaintiff to advise all counsel within ten days as to the present location of the meat grinder and its component parts that plaintiff was allegedly using when he was injured. The order additionally required plaintiff to produce his expert reports by April 15, 2007, and set a discovery end date of July 30, 2007.

In April 2007, Berkowitz filed a motion seeking to be relieved as plaintiff's counsel and for an extension of the time for discovery. Defendants did not object to Berkowitz's withdrawal as counsel but filed a cross-motion to dismiss plaintiff's complaint with prejudice because plaintiff had not complied with the court's October 11, 2006 case management order. Defendants asserted that plaintiff had not informed all counsel as to the present location of the meat grinder and its component parts; had not made himself available for a deposition; and failed to produce his expert reports on liability and damages.

The court heard the motions on April 27, 2007. Berkowitz asked the court to permit him to explain the reasons for his withdrawal from the case in an ex parte discussion with the court. Berkowitz said that it would harm plaintiff's case if defendants were to learn of the reasons that he was withdrawing from the case. The judge met with Berkowitz. Defendants thereafter were informed that plaintiff had returned to his home in the Dominican Republic.

The court entered an order on April 30, 2007, denying the motions without prejudice. The court ordered Berkowitz to notify plaintiff of his motion to withdraw as counsel, defendants' motion to dismiss the complaint with prejudice, and plaintiff's right to retain another attorney. The court further ordered plaintiff to retain a new attorney by May 18, 2007, if he intended to continue with his lawsuit.

In May 2007, Murphy returned as plaintiff's counsel, with Gary G. Staab (Staab) acting as co-counsel. At a case management conference conducted by the court on May 25, 2007, defendants renewed their request for plaintiff's deposition. Plaintiff's attorneys said that it would take ninety days to obtain the visa required for plaintiff to appear for his deposition. The court entered an order on May 30, 2007, which addressed outstanding discovery but did not require plaintiff to appear for this deposition.

Another case management conference was held on August 10, 2007. In its case management order entered on August 13, 2007, the court required, among other things, that plaintiff's deposition take place on or before September 21, 2007. On August 23, 2007, counsel for defendant H. Gist Unlimited Trucking, Inc. issued a notice scheduling plaintiff's deposition for September 19, 2007.

By letter dated September 11, 2007, Staab advised defendants' attorneys that it would not be possible for plaintiff "to obtain the appropriate visa to enter the United States on or before September 19, 2007, as that process will take at least several months." Staab said that plaintiff would be produced by video teleconference for his deposition on September 19, 2007. Defendants advised plaintiff's attorneys that they would not depose plaintiff by video teleconference because the court previously had rejected plaintiff's request to conduct the deposition in that manner and had ordered plaintiff to appear in person for his deposition.

On September 18, 2007, plaintiff filed a motion to permit his deposition to be taken by video teleconference. In support of that motion, plaintiff's attorneys stated that, although the court had previously ordered plaintiff to appear in person for his deposition, counsel had "learned that the waiting time for a citizen of the Dominican Republic just to obtain an appointment with the U.S. Consulate in Santo Domingo to apply for a temporary visa to come to the United States is approximately 155 days." Defendants opposed plaintiff's motion and filed a cross-motion dated September 27, 2007, to dismiss plaintiff's complaint with prejudice.

On September 19, 2007, defendants deposed plaintiff's brother, Juan Lopez (Lopez). Lopez stated that plaintiff is a resident of the Dominican Republic. He explained that plaintiff had entered the United States in 2001 using Lopez's papers, had been detained at the airport and was deported. Lopez said that plaintiff later returned to the United States illegally by way of Puerto Rico. Lopez had employed plaintiff at his grocery store in Jersey City from 2001 to 2007. According to Lopez, plaintiff was injured during the course of his employment with Lopez. Lopez said that plaintiff returned to the Dominican Republic early in 2007.

The court considered the motions on October 19, 2007. After hearing oral argument, the court placed its decision on the record. The court decided to deny plaintiff's motion and grant defendants' motion to dismiss the complaint, although the dismissal was without prejudice.

In its decision, the court stated that the case management orders had required plaintiff to appear in person for his deposition and "[t]hat was not done." The court added that dismissal of the complaint was warranted because plaintiff could not appear in person "at least for the foreseeable future[.]" The court entered an order dated October 19, 2007 memorializing its decision.

Plaintiff filed a notice of appeal on November 27, 2007. On January 17, 2008, we dismissed the appeal because the trial court's October 19, 2007 order was not a final order that may be appealed as of right pursuant to Rule 2:2-3(a). We remanded the matter to the trial court.

On January 15, 2008, plaintiff filed a motion to reinstate his complaint, to extend the time for discovery, and to permit his deposition to be taken by video teleconference. The trial court entered an order on March 14, 2008, denying the motions, noting in the decision that it placed on the record that there was no basis to reconsider its prior rulings because "[e]verything is essentially the way it was in October [2007.]" This appeal followed.

Plaintiff argues that the judge erred by refusing to permit him to be deposed by a video teleconference. Plaintiff contends that he made "every reasonable effort" to appear in person for a deposition and "it is unfortunate that he was unable to do so[.]" Plaintiff asserts that video teleconference depositions are a common practice in New Jersey and defendants would not be prejudiced by having plaintiff deposed in this manner. Plaintiff contends that he substantially complied with his obligation to appear for a deposition and, therefore, the court should not have dismissed his complaint.

The standard of review applicable in this appeal is well established. As a general matter, we defer to decisions of the trial court in discovery matters, "unless the court has abused its discretion." Payton v. N.J. Tpk. Auth., 148 N.J. 524, 559 (1997) (citing Hammock v. Hoffmann-LaRoche, Inc., 142 N.J. 356, 380 (1995); Garden State Cmty. Hosp. v. Watson, 191 N.J. Super. 225, 228 (App. Div. 1982), certif. denied, 94 N.J. 518 (1983). Having considered the record in light of plaintiff's arguments, we are convinced that the trial court did not abuse its discretion and its order of March 14, 2008 must be affirmed.

It is undisputed that the court ordered plaintiff to appear in person for his deposition and he did not do so. Rule 4:23-4 provides that, when a party fails to appear before the officer within this State who is to take his deposition, after being served with a proper notice, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (1), (2) and (3) of [Rule] 4:23-2(b). [Emphasis added.]

Rule 4:23-2(b)(3) permits the court to enter "[a]n order . . . dismissing the action or proceeding or any part thereof with or without prejudice[.]"

Here, plaintiff was in the United States when the notice for his deposition was first served. Plaintiff's counsel chose to postpone the deposition while he conducted other discovery. Plaintiff thereafter left the United States and he was unable to return because he had previously entered this country illegally and apparently was unable to obtain authorization to return. The trial court found that it was unlikely this situation would change in the foreseeable future. We are convinced that, under these circumstances, the trial court was authorized by Rules 4:23-4 and 4:23-2(b)(3) to dismiss plaintiff's complaint without prejudice and the court did not abuse its discretion by doing so.

We reject plaintiff's assertion that the trial court erred by refusing to permit his deposition to be taken by video teleconference. Rule 4:23-4 states that the court may impose sanctions if a party fails to appear in this State for his or her deposition. Our court rules do not give a party the right to compel other parties to conduct his or her deposition by video teleconference or require other parties to travel to a foreign country to take the deposition.

Although Rule 4:14-9 permits the taking of videotaped depositions for discovery purposes, the rule provides that such depositions must be conducted "in accordance with the applicable provisions of [the] discovery rules[,]" as well as the additional requirements of Rule 4:14-9. Consequently, a party's deposition may be videotaped for discovery purposes under certain circumstances. However, as Rule 4:23-4 makes clear, a party remains obligated to appear "within this State" for his or her deposition.

In seeking reversal of the trial court's order, plaintiff relies upon Haynes v. Ethicon, 315 N.J. Super. 338 (Law Div. 1998). In that case, the plaintiff's experts were located in Massachusetts. Id. at 339. The plaintiff asked that his experts be deposed by way of a live video conference. Id. at 340. One of the defendants refused and the plaintiff filed a motion to permit the experts to be deposed by video conference. Ibid. The Law Division concluded that under Rule 4:14-7(b)(2), the plaintiff had the duty to "produce" his expert witnesses for depositions. Id. at 342. The court held that the plaintiff had "produced" his experts by making them available for deposition in a video conference. Id. at 343.

We express no view as to whether Haynes was correctly decided. Nevertheless, plaintiff's reliance upon Haynes is misplaced. Haynes dealt with expert depositions and interpreted Rule 4:14-7(b)(2). This case does not involve the deposition of experts. It involves the deposition of a party. As stated previously, under Rule 4:23-4, a party must appear for a deposition "within this State." Making a person available in video teleconference is not a personal appearance "within this State." Therefore, Haynes does not apply in this particular situation.

Plaintiff also argues that the trial court erred by failing to fashion a remedy that does not involve dismissal of his complaint. Again, we disagree. Plaintiff invoked the jurisdiction of our courts and, in the pursuit of this action, is required to comply with our court rules. As we have explained, dismissal of plaintiff's complaint was warranted because he did not appear in person in this State for his deposition and would not be able to do so in the foreseeable future. The trial court was not required to fashion a different remedy because plaintiff has not been able to obtain authorization to return to the United States.



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